US follows treaties only when it suits

The US Navy Seal raid into Pakistan that killed
Osama bin Laden
has triggered a predictable chorus of complaints.

High-profile human rights lawyer Geoffrey Robertson described the death of the al-Qaeda leader as a “perversion of natural justice". Former human rights commissioner Moira Rayner complained that bin Laden’s “execution by agents of the sovereign people of the United States was a fundamental breach of article 10 of the universal declaration of human rights".

But such pronouncements ignore the fact that the US does not regard itself as bound by international law. It is a long-standing US constitutional doctrine that a ratified international treaty shares equality of status with congressional statutes. And like any other law on the federal books, a treaty obligation can be modified or repealed through subsequent action by Congress.

With a laundry list of Supreme Court decisions to that effect, there is nothing even vaguely controversial about this principle within US jurisprudence. The 1957 ruling in the case of Reid v Covert declared: “this court has regularly and uniformly recognised the supremacy of the constitution over a treaty".

In essence, Washington’s adherence to international law is entirely voluntary. So the furious debate as to whether the 2003 invasion of Iraq was sanctioned by the UN is rendered irrelevant. American military action was duly authorised by a congressional Iraq War resolution of October 2002 that made the overthrow of Saddam Hussein legal under US law.

The same principle holds true for the raid on bin Laden. One week after the 9/11 attacks, Congress passed what became US Public Law 107-40: the authorisation for the use of military force (AUMF). It empowered the US president to “use all necessary and appropriate force against those nations, organisations, or persons he determines planned, authorised, committed, or aided the terrorist attacks that occurred on September 11, 2001". If that category didn’t include bin Laden, then the English language has lost all meaning.

The AUMF nullified contrary obligations the US might have previously incurred under international treaties, including the universal declaration of human rights. In American eyes, Osama bin Laden was a wartime enemy combatant who was treated as such.

The superiority of the US constitution over international law has an added dimension. The authority to pass legal judgment on American government action is restricted to constitutional officers of the United States.